Hate Crimes and Thought Crimes: a Question of Mens Rea

Thank you, reader Jim E., for tipping me off to this discussion at “Crooked Timber” on current Republican objections to “hate crime” legislation, and for thinking I could add something to it. I’ll do my best.

Republican opposition to hate crime legislation is not a model of consistency. As “Crooked Timber” notes, Jim Boehner (R-OH), who objects to hate crime legislation by calling it an attempt to criminalize thought, doesn’t object to all hate crime legislation — just those laws that would include within their definition crimes against gay Americans. There’s no dodging that, for Boehner at least, this is about gay rights, not meta-debates on criminal law.

But his problems run deeper than that. Generally, all crimes do indeed involve, to some degree, a criminalization of thought, or a sensitivity to the status of victim or defendant. Intentional homicide is much worse, morally, than reckless manslaughter; similarly, killing a peace officer in cold blood is much worse than killing an average citizen. Increased criminal penalties attach to both, criminalizing thought in the form of criminal intent (mens rea) or disrespect for the law, but only because the thoughts are acted upon, rather than merely thought.

This distinction is critical. Hate speech laws, criminalizing the vocalization of a criminal intent without a real act, are generally unconstitutional. Compare Wisconsin v. Mitchell, 508 U.S. 476 (1993) (upholding hate crime legislation as constitutional, per Chief Justice Rehnquist and a unanimous Court) (“A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment”) with R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down a model hate speech act). Because hate crime laws require both a mens rea and an already-criminal actus reus (bad act), the legal consensus, per a unanimous court, is that they’re just normal criminal laws, different only in that they criminalize an extra element not traditionally thought of as taboo — racial, religious, or sexual-orientation based hatred. So “Crooked Timber” is quite right to point out that, if this is “thoughtcrime,” the fault extends to the entire criminal code.

I will diverge from them on this point only: while hate crime laws can be justified solely on the grounds that they, like all laws, assess harsher penalties for more reprehensible crimes, I don’t think that should be our go-to justification. We shouldn’t have to debate the value of minority lives to find hate crime legislation compelling. The best justification, I think, is more objective: hate crimes are harder to deter, because they stem from a disbelief in the humanity of the victim. The crimes, thefore, aren’t just more shocking — they’re easier for a criminal to rationalize. Hate crime laws adjust for this disparity by reminding prospective lawbreakers that, even if they set their victim’s life at naught, the law will hold them accountable. The effect should be greater deterrence to meet a greater threat: hate crime laws don’t put minorities on a pedestal. They just equalize the moral calculus and ensure effective deterrence. If we’re to be “tough on crime,” we should all aspire towards that goal.

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9 comments

  1. I’m not entirely comfortable with hate crime legislation myself; like affirmitive action, it may be necessary in order to correct a greater evil, but its an inelegant, imperfect solution. Granted, unlike affirmitive action, hate crime legislation is not only for minorities – it can apply to a killer who preferentially targets male, white, heterosexual christians.

    I don’t necessarily agree with but can maybe understand an argument against all hate crime legislation, as long as the argument does not equate it with criminalizing thought. The argument could be that any hate crime could be prosecuted with an appeal to the perpetrator’s extraordinary malice or to psychological abuse all without having to define which classes of personal characteristics warrant additional protection and which do not.

    Hate crime legislation currently covers religion, ethnicity, etc, but not sexual orientation. It’s enumerative, and that a problem. Why can’t it be general, saying that a hate crime is any crime perpetrated prejudicially against those with a certain characteristic. Is it a hate crime to murder only people who wear glasses? For a militant vegetarian to murder people who eat meat? It could be argued that the murder of an abortion doctor is a hate crime in addition to terrorism.

    But what I really take issue with is Boehner’s argument. Hate crimes should only cover immutable characteristics – so obviously ethnicity and gender are in, but he considers religion to be immutable and therefore protected, but sexual orientation to be a choice, and therefore unprotected. While there is still some debate as to what extent genetics plays in determining sexual orientation, it is total bullshit to say that religion is not a choice. It cannot be ignored that many people convert from one religion to another in their adult lives. To say that religion is not a choice is to say everyone is born unquestioningly into the religion of their parents or their community.

  2. I thought an important point was raised in the comments of the CT post. Most of the law only criminalizes thought to the extent that it cares whether or not you intended to commit a crime. The difference between murder and manslaughter isn’t a matter of motive, but of intent. Hate-crime laws, in the broadest sense, discriminate among motives. What matters is not whether or not one intended to commit a crime, but why one intended to commit a crime. And my understanding is that this kind of distinction has usually not been codified in law. We all expect a judge and jury to be more lenient to someone who steals to feed his hungry family, but we leave that up to judicial discretion (right?) except in very extreme situations (self-defense, for example). We don’t want killing a gay man to carry extra penalties in the same way that killing a police officer does – it sounds odd to say it, but we want it to be possible for someone who kills a gay man for reasons entirely unrelated to his sexual orientation to be treated as if he’d killed anyone else.

    I don’t know about your proposed justification. You seem to be addressing a slightly different problem – the problem you see is that some people don’t value the lives of whole classes of people as much as they ought. But this seems true of just about any bigot. Surely it ought to be possible for a bigot to criminally assault an object of his bigotry without thereby committing a hate crime. I also note that hate-crime laws are generally also meant to address crime that doesn’t cause bodily harm – it’s possible to commit a hate crime by throwing bricks through windows.

    I thought a later comment on CT offered a reasonable justification for these laws. A hate crime is necessarily a message to others of the same group. You don’t commit a hate crime because you want to punish someone for being a certain way – you commit a hate crime because you want to take action against a whole group of people. You want to show that that characteristic or behavior won’t be tolerated. And this is some combination of a threat and incitement, which of course we can criminalize.

  3. I’ve read through about 100 comments, and it’s a really meaty discussion. I suggest anyone insterested in the topic go read that.

    1. I just did. It was indeed very interesting, and I’m struck by a particular comment:

      “The fact is the mens rea and action may be identical: you beat someone up because you wanted to intimidate a particular group. But for some groups it’s a hate crime, for others it isn’t, largely because some groups are thought to be more worthy than others. If you feel intimidated because you’re X that’s terrible, if you feel intimidated because you’re Y that’s tough. What makes it really sinister is that this is more-or-less accepted, and the argument now is really just a factional squable about where the deserving/undeserving line is drawn.”

      Much like what you said above, it seems an argument gainst having any (extant, enumerative) hate crime legislation at all.

  4. The effect should be greater deterrence to meet a greater threat: hate crime laws don’t put minorities on a pedestal. They just equalize the moral calculus and ensure effective deterrence. If we’re to be “tough on crime,” we should all aspire towards that goal.

    Ames,
    So close, and yet . . . little in the law these days strikes at effective deterrence. I know we liberals are loathe to admit it, but our current criminal code is really more about retribution pos hoc then prevention. The guys who dragged the gay man to death in Wyoming a while back weren’t deterred by hate crimes laws – or laws against murder for that matter.

    Sadly, deterrence doesn’t work because we’re not all starting from the same moral, ethical, educational, or economic place in life. Add to that the reinforcement of significant prejudices in certain fundamentsalist religious circles, and the law as deterrent becomes ineffective. Aspirational, perhaps, but not deterrent.

    And that’s why I really think we waste our time with further debate over hate crimes laws. Sure, it makes us (especially liberals) feel good to pass one and start enforcing it, but
    I think a far better use of our time is removing the socio-economic bases of the hate itself. Sure, that’s harder then locking folks up, but ultimately more rewarding both personally and professionally.

  5. Gotchaye said, “You don’t commit a hate crime because you want to punish someone for being a certain way – you commit a hate crime because you want to take action against a whole group of people.” So that brings this question to my mind: is there evidence that someone who commits a hate crime is likely to become a repeat offender? If someone’s biggest miff with their victim is that he or she is homosexual, it would be easy to find many more potential victims. Is that part of the rationale for hate crime legislation — to prevent potential serial hate crime-ists?

  6. Mike from Ottawa · ·

    “We don’t want killing a gay man to carry extra penalties in the same way that killing a police officer does – it sounds odd to say it, but we want it to be possible for someone who kills a gay man for reasons entirely unrelated to his sexual orientation to be treated as if he’d killed anyone else.”

    Unless you’ve seen some hate-crimes legislation that says that killing members of certain groups is automatically a hate crime (and I haven’t), your fear would seem to be unfounded.

  7. Mike from Ottawa · ·

    Hate-crimes need to be subject to particularly harsh treatment because they are terroristic in effect. When, some years ago, a groups of yobs threw a man off a bridge here to his death, thinking he was gay (as it happened, the victim wasn’t), it had the effect of sending a chill up the spine of other gay men. When someone is attacked because they are a member of a group (or thought to be) it acts to terrorize others of that group. That is a reason for additional punishment for hate-motivated crimes that is based not on criminalizing thought but on recognition of the consequences of some types of crimes.

  8. Marie: I don’t know, but I think that’d be a difficult question to answer. Recidivism rates in general are so high (2/3 after three years) and standards for hate crimes are so vague that I doubt you’d find a statistically significant relationship even after combing through whatever data’s available. It does make intuitive sense, though, especially if you look at hate crimes as a form of terrorism. It’d certainly make sense to me as a justification for hate crime laws with respect to otherwise small-time offenses, but I don’t know how much it would work to prevent repeat assaults, for example. I don’t know that extra time in prison short of a life sentence would meaningfully cut recidivism rates for serious crimes – you’d just delay the repeat offense.

    Mike from Ottawa: I was pointing to a distinction between hate crime laws and laws treating the killing of police officers differently than the killing of civilians, not saying that hate crime laws might actually work that way (my point was that they don’t).

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